Archive for the ‘Trust’ Tag

Trust is an essential component of procedural fairness, which, in turn, has been shown to be a key source of legitimacy for decision-makers. All public institutions now face serious skepticism from the public about their trustworthiness. However, a trust deficit – and the resulting lack of legitimacy – are of particular threat to the judiciary. Legitimacy is essential if courts are to be respected and, indeed, if court orders are to be obeyed. Simply put, failure to maintain and enhance the legitimacy of court decisions imperils the judiciary as an institution and the vital role assigned to the judiciary in our Constitutional tradition.

The threat is real. Today, 75% of the American public thinks judges’ decisions are, to a moderate to significant extent, influenced by their political or personal philosophy. Of course, judges have a range of philosophical views and exercise discretion, so some differences of opinion among judges are to be expected. But 75% of the American public also believes judges’ decisions are, to a moderate to significant extent, influenced by their desire to be appointed to a higher court.

Two recent articles explain the potentially grave implications.

First, Politico recently published a contribution by law professors Charles Geyh and Stephen Gillers advocating for a bill to make the Supreme Court adopt a code of ethics. They argue:

[I]t would be a mistake for the Court to view the [ethics] bill as a challenge to its power. It is rather an invitation. No rule is thrust on the justices. Under the … bill, the justices are asked to start with the code governing other federal judges, but are then free to make ‘any amendments or modifications’ they deem ‘appropriate.’ A response that says, in effect, ‘We won’t do it because you can’t make us’ will hurt the court and the rule of law.

Second, Linda Greenhouse, a regular commentator on the New York Times Blog “Opinionator,” recently wrote this post about the Foreign Intelligence Surveillance Court entitled Too Much Work?. Greenhouse writes:

As Charlie Savage reported in The Times last month, Chief Justice John G. Roberts Jr. has used that authority to name Republican-appointed judges to 10 of the court’s 11 seats. (While Republicans in Congress accuse President Obama of trying to “pack” the federal appeals court in Washington simply by filling its vacant seats, they have expressed no such concern over the fact that the chief justice has over-weighted the surveillance court with Republican judges to a considerably greater degree than either of the two other Republican-appointed chief justices who have served since the court’s creation in 1978.)

What do these two pieces mean for judges? Both articles highlight how the judiciary itself, if not careful, can contribute to the erosion of public trust in our decisions. To be sure, the erosion of the legitimacy of judicial decisions is not entirely the fault of the Supreme Court, nor of judges in general. The media, for example, often refers to which President appointed a judge as a shorthand way to explain a decision. But that is, in part, why Ms. Greenhouse’s piece is important. The Chief Justice is recognized as a brilliant man. He and every other judge in the United States know the inevitable shorthand the media will use to describe judges and to explain their decisions. And so the Chief Justice, the members of the United States Supreme Court, indeed every judge in this country needs to be particularly sensitive to what we are doing that might either advance trust in courts or contribute to the erosion of the legitimacy of our courts. The bottom line is: Appearances make a difference. There will be decisions by judges at every level of court that test the public’s trust in our wisdom. It is therefore imperative that judges act in a manner that builds a reservoir of goodwill so that people will stand by courts when a decision is made with which they disagree. There may have been an era when trust in the wisdom and impartiality of judicial decisions could be taken as a given. But if there was such an era, we no longer live in it. Trust and legitimacy today must be earned.

One of the reasons to focus on procedural fairness is that the public’s perception of it drives overall public approval of the courts. This is especially important in times like these, in which public confidence in government and other institutions is below historical norms. The United States Supreme Court is historically the leader in public support among courts, so it’s always of interest when Gallup reports the approval level for that court as it begins each term.

This year’s report card raises concern that the perception of the Supreme Court may be dropping on a long-term basis as people view them as increasingly political in their work. Gallup’s September 2012 survey showed less than half of the respondenrs, 49%, approving the way the court was handling its job with 40% disapproving. While that was up slightly from the 46%-45% approval found in a July 2012 survey—taken right after the healthcare ruling—it’s well below the 62% approval the court had in 2000 or the 61% approval it had in 2010.

Behind the number, though, is a partisan divide that has been evident since Bush v. Gore in 2000. Approval by Democrats slipped to 42% in 2001 and stayed in the 40’s until President Barack Obama’s election. But once he began appointing justices, support among Democrats increased to 75% in 2009. Republican approval reached 75% in 2006, but it fell to 49% in 2009. And a further drop in Republican support occurred after the healthcare decision: in September 2012, Republicans disapprove the job Supreme Court is doing (56%-36%) while Democrats approve it (57%-34%). Fortunately, Independents were positive (50%-35%), giving the court an overall approval in positive territory (49%-40%), even though slightly below the 50% mark.

On the plus side, Americans have greater trust in the judicial branch of government than in either the legislative or executive. Gallup’s September 2012 survey also asked how much trust respondents had in each branch, and 67% had a great deal or a fair amount of trust in the judicial branch, while the numbers for the other branches were 56% (executive) and 34% (legislative). And on this question there was less partisan divide: Republicans (62%), Democrats (69%), and Independents (68%) all had relatively good levels of overall trust in the judicial branch of government.

What’s the take-away message here? We’re in a time when public trust in government cannot be taken for granted, and there’s a growing suspicion that judges are political actors. Against this background, it’s vital that judges do our best to provide procedural fairness, which is a key component for maintaining public confidence in our work.

Recent events in New York City make it clear that there is widespread and continuing anger over the street stop policies of the NYPD. This ongoing discontent reflects a broader paradox in American policing: the police have become more effective in reducing the rate of violent crime to historically low levels but their success has not led to higher levels of public trust in the police. There are lessons from this police experience not only for police commanders but also for judges, court administrators, and others working in the criminal justice system.

Based upon my own research and that of other social scientists we know why this performance without legitimacy paradox is occurring. Public anger continues because the police have not addressed what actually matters to the public. My research shows that police legitimacy is based upon how fairly the public thinks the police exercise their authority. Until the police change their policies and practices to address public concerns over procedural justice, controversies over police practices such as racial profiling, police street stops and the surveillance of Muslim Americans will not end.

Many cities, including New York City are experiencing dramatically lower levels of violent crime. Despite these gains public trust and confidence in the police is not increasing, nor is the large racial gap in trust and confidence between White and minority Americans closing. Better performance has not lead to greater public legitimacy. Why? Police leaders are failing to take account of public concerns. Evaluations of policies and practices by police leaders ask if they are effective in preventing crimes. The question of whether these policies and practices are viewed as legitimate by people in the community is not addressed. My research findings however tell us that effectiveness is not the key factor that the public considers when reacting to police policies and practices.

What does the public care about? Research shows that the key issue to members of the public is their evaluation of the fairness of the way the police exercise their authority: i.e. to issues of procedural justice. More than anything else people are concerned about whether they feel that the police officers to whom they give the authority to maintain order in their communities act using fair procedures.

What does the public mean by fair procedures? They mean first that when creating policies the police work with the community to identify problems and the strategies that should be used to address them. When dealing with particular citizens they allow those people to tell their side of the story, to explain their situation, before making decisions. When implementing the law the police explain their policies and how they are being applied in particular cases in ways that the public can see are neutral and unbiased.

The public also means that the police should treat people fairly. Fair treatment is respectful and courteous. It acknowledges people’s rights not to be demeaned, ridiculed or insulted by the police. And, the police are trustworthy. They act with integrity, accounting for their actions in ways that show good faith responsiveness to people and their problems.

Why should the police care about this public perspective on policing? Insensitivity to public concerns has led police departments like the NYPD to turn victory into defeat. Instead of being congratulated for lowering the rate of violence in New York City, or reducing the rate of unlawful shootings, the police are reviled by an angry population for mistreating people in the community.

And the police lose the benefits of public cooperation. Studies show that when people view the police as more legitimate they are more willing to defer to police authority; less likely to resist and defy the police; and that complaints against the police go down. Legitimacy further encourages willing compliance with the law and cooperation with police efforts in their efforts to stop crimes and identify criminals. When fairly treated people are more willing to work with the police in efforts that join the police and the people in the community in efforts to maintain order by attending community meetings or joining a neighborhood watch.

If officers dealt with people seeking to communicate respect and deliver fairness they would be working not only to prevent crime but to build public support for the police. And, more broadly legal authorities need to recognize the value of considering their policies and practices from the perspective of public concerns. That perspective emphasizes that people are “seekers of justice” and evaluate their experiences with the police and courts by evaluating how fairly they experience the actions of the authorities they deal with.

3. Respect: individuals are treated with dignity and their rights are explicitly protected; and

4. Trust: authorities are benevolent, caring, and sincerely trying to help the litigants—a trust garnered by listening to individuals and by explaining or justifying decisions that address the litigants’ needs.

Now that you know what it is, is it important? It sure seems to be. An extensive 2005 study in the California state courts found that perceptions of procedural fairness were “the strongest predictor by far” of public confidence in the California court system. Simply, if litigants or members of the public perceived that the courts provided fair treatment in the aspects Tyler identified, their overall opinion of the court system was much more positive. This was true across different ethnic groups, across gender, and across income and educational levels.

In addition, procedural fairness plays an important role in improving compliance with court orders. Several studies strongly suggest that when litigants perceive that they’ve been treated fairly, they are more likely to comply with the court orders that follow.

For a useful introduction to procedural-fairness principles, three articles from Court Review, the journal of the American Judges Association, will do the trick: